Comparing Catalan independence to Kosovo makes no sense

On July 31, pro-independence parties in the regional parliament of Spain’s Catalonia region tabled a draft law they hope will pave for the way for a planned October 1 referendum on the issue of secession from Spain.

The legislation, which is still awaiting final approval, aims to provide legal cover to a vote staunchly opposed by the Spanish central government, and which Madrid has repeatedly insisted will not go ahead.

The ICJ took great pains to place the ruling within the unique and exclusive context of Kosovo

The proposed law also contains an oblique reference to the former Yugoslav province of Kosovo, which declared independence from Serbia in 2008.

However, the authors of the document, no doubt conscious of the fragile nature of the example, did not dare to cite the Kosovo example by name. Instead they limited themselves to referring to “recent rulings” by the International Court of Justice (ICJ) that would serve to validate the exercise of self-determination even in cases where neither colonial oppression nor foreign dictatorship is involved.

But even the mention of the “recent rulings” was deceptive, as there was in fact just the one advisory opinion provided by the ICJ on the matter of Kosovo: that of June 22, 2010. And the one big lesson from the Kosovo example for Catalonia’s pro-independence Junts pel Sí (Together for Yes) and CUP parties is that any declaration of independence must not contravene a democratic constitution, bill of rights or legitimate constitutional framework.

The ICJ ruled that Kosovar law did not rule out a declaration of independence. However, Spain’s democratic Constitution and the Catalan Statute explicitly exclude this option.

Catalonia is not Kosovo; it has not been subject to a suffocating political and military occupation

In short, Catalonia is not Kosovo. It has not suffered the displacement of 700,000 of its citizens, as was provoked by Serbia in Kosovo. Nor has it, as is the case with the former Yugoslav province, experienced the violent suppression of its own authorities (as decreed by Belgrade). The Spanish region wasn’t subject to a suffocating political and military occupation, and no international force was needed to liberate it, as was the case with Kosovo and the Nato-led Kosovo Force (KFOR). Neither has Catalonia spent a decade under UN control, as happened in Kosovo from 1999 to 2008. In the end, it was the UN which recommended independence for Kosovo.

The 2010 TIJ ruling on Kosovo is not applicable in any way to Catalonia because it does not line up with the three reasons which the international court cited in favor of the specific act of declaring sovereignty, rather than on the right to self-determination, which it had not been asked to rule on.

The first reason is that while there is no specific international rule that regulates or prohibits declarations of independence in the post-colonial era, the “factual context” and the “relevant events” behind such declarations are key. In the case of Kosovo these are diametrically opposed to the context in Catalonia.

Secondly, the relevant law – UN Security Council Resolution 1244 – which saw Kosovo become a de facto civil protectorate under the UN, effectively ending Serbian sovereignty – did not impede the declaration of independence. In fact, it encouraged it. There is nothing similar in the case of Catalonia.

Finally, the legal framework established on May 15, 2001 by the UN Mission in Kosovo (Unmik), which effectively governed the territory, controlling and supervising its administration and replacing Yugoslav law, also allowed for a declaration of independence. That is not the case in Catalonia, where the Spanish Constitution and the Catalan Statute clearly exclude secession.

It is worth looking at this reasoning in a little more detail. Firstly, the ICJ did not rule on “whether international law conferred a positive entitlement on Kosovo unilaterally to declare its Independence.” The court deemed it was not necessary to answer this question. Instead it confined itself to determining “whether or not the declaration of independence [of February 17, 2008] was adopted in violation of international law.”

The court also found that the Kosovo declaration of independence did not contravene international law, because while the Helsinki Accords of 1975 recognize the rights of free determination, the authors assumed this would be limited by other rules, including those specifying that “participating States will respect the territorial integrity of each of the participating States.”

According to the ICJ, “the scope of the principle of territorial integrity is confined to the sphere of relations between States,” and therefore not between a territory that is not a state [such as Catalonia], and a State [like Spain].

The Hague ruling does not mention UN resolution 2625 of 1970 on the friendly relations and cooperation between countries. That document notes the “principle of equal rights and self-determination of peoples” but also warns against “authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

Even more clear is UN resolution 50/6 which reaffirms the fundamental right of self-determination of all peoples, “taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation.”

That 1995 resolution points out this recognition of the right to self-determination should not be seen as “authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.” Surprisingly, the ICJ leaves out this resolution.

The Kosovo declaration of independence is tolerated because it does not violate international law. But the judges also note that an act such as a unilateral declaration of independence could be carried out “without necessarily constituting the exercise of a right conferred by it [international law].”

The Kosovar legal framework did not exclude a declaration of independence; the Spanish constitution does

Despite these ambiguities and judicial contradictions, the ICJ took great pains to place the ruling within the unique and exclusive context of Kosovo.

That exclusive context includes both UN Security Council Resolution 1244 and Unmik regulation 2001/9, which took Yugoslavia out of the equation and created a legal framework and a state structure like that of a “sovereign state,” according to human rights legal expert Bright Theu. This administration, with its own ministries, president and policies effectively ended Serbian sovereignty in Kosovo, Theu notes.

Four years later, in 2005, after failed negotiations between Kosovo and Serbia, UN Special Envoy to Kosovo Martti Ahtisaari said that “supervised independence” was the only “only viable option for Kosovo.”

This historical chain of events demonstrates why the ICJ offered a second argument in favor of the Kosovar cause: UN resolution 1244 did not specifically prohibit a declaration of independence. This prohibition was not included, because if the UN Security Council had wished to impose conditions on the definitive future of Kosovo, it would have specified these as was the case in “contemporaneous practice” with Cyprus, where the Security Council had called for a “single sovereignty.”

Above all, if the Security Council had wanted to forbid a Kosovo declaration of Independence, it would have done so as it did in resolution 787 (1992) concerning the Republika Srpska of Bosnia.

The only viable option for Kosovo is supervised independence Former UN Special Envoy to Kosovo Martti Ahtisaari

The ICJ judges once again stressed that Kosovo was a unique case, noting: “When interpreting Security Council resolutions, the Court must establish, on a case-by-case basis, considering all relevant circumstances, for whom the Security Council intended to create binding legal obligations.”

The third and shortest section of the ICJ ruling on Kosovo states the existing Unmik–Kosovo Assembly constitutional framework did not prevent the declaration of independence from Serbia. If the Assembly itself had made that declaration, it would have overstepped its powers. But the court held that the “declaration of independence of 17 February 2008 was not issued by the Provisional Institutions of Self-Government.”

Therefore, “the declaration of independence did not violate the Constitutional Framework,” according to the court.

The fact that the authors of the declaration were not part of the provisional administration in Kosovo made their action legal may sound like a legal loophole, but this is not the key aspect of the ruling. The most important argument is that a declaration of independence must not contravene a democratic constitution. The Kosovar legal framework did not exclude such a declaration. The Spanish constitution does. Catalonia is not Kosovo.

English version by George Mills.